Hostname: page-component-78c5997874-lj6df Total loading time: 0 Render date: 2024-11-08T02:22:37.225Z Has data issue: false hasContentIssue false
  • English
  • Français

Trial Courts and Social Change: The Evolution of a Field of Study

Published online by Cambridge University Press:  01 July 2024

Frank Munger
Rights & Permissions [Opens in a new window]

Abstract

An abstract is not available for this content so a preview has been provided. As you have access to this content, a full PDF is available via the ‘Save PDF’ action button.
Image of the first page of this content. For PDF version, please use the ‘Save PDF’ preceeding this image.'
Type
Introduction
Information
Law & Society Review , Volume 24 , Issue 2: Special Issue: Longitudinal Studies of Trial Courts , 1990 , pp. 217 - 226
Copyright
Copyright © 1990 The Law and Society Association.

Footnotes

I am grateful to all of the participants in the Conference on Longitudinal Research on Trial Courts and to the contributors to this Special Issue for the extraordinary pleasure of working with them, for their help and cooperation in making this collaborative project possible, but most of all for what I have learned from them as colleagues and friends. Some of what I think I have learned is expressed in this brief introduction and in the Afterword. For assistance in composing both of my contributions to this issue I would especially like to thank Jim Atleson, Shari Diamond, David Engel, Felice Levine, Jack Schlegel, and Carroll Seron.

References

1 As I acknowledge at the end of this essay, the articles and comments in this issue are edited versions of papers and comments presented at a conference on longitudinal research on trial courts held at the State University of New York at Buffalo in August 1987. The conference was supported by National Science Foundation grant SES-8512625, and this Special Issue of the Law & Society Review was made possible through a supplementary grant SES-8843466. The conference was organized specifically for the purposes of assessing this field of research and providing an opportunity for reflection and exchange about the contents of many of these papers.

2 Hurst's careful historiography has always been broader than his theory. In contrast to his main theoretical framework, he acknowledges that factors other than law are at work in social change, and this acknowledgment, together with his detailed description of the litigants, their economic interests, and the manipulation of law to serve particular interests (often an implicit rather than an explicit theme), suggests new lines of theoretical development for research on law and social change. One might thus say that there is an invitation to look more deeply at the marginality of the law, at the inequalities of power among litigants, and at the state. These themes have yet to be developed fully in research on law and social change.

3 Examination of the relationship of law to social change might have been pursued from these beginnings along many different lines of theoretical development, for example, by examining the apparently increasing dependence of private transactions on legal forms or the changing social construction of actor choices in conflict resolution in different cultures. It is interesting, for example, that none of the essays inspired by Toharia's work that appeared in the 1974 issue of the Review made the obvious connection between Toharia's research and the article by Marc Galanter that appeared in the same Special Issue on the Review (1974) on the impact of inequalities in resources and power on litigation.

Yet from one perspective it is not surprising that it was the impact of social change on the frequency of litigation that in fact received further attention. Of course, the availability of docket data was important. But another explanation seems equally important. Early longitudinal research on trial courts suggested that there was a connection between social conflict and the behavior of courts. These studies were conducted at a point in U.S. political history (the mid-1970s) when a similar connection was being made in policy debates about the appropriate role of courts in public and private conflict (see Burger, 1970). That the policy debates were being driven by political retrenchment following a period judicial and social activism, and thus were not motivated by concern for the courts themselves, seems to have been lost in the tidal wave of studies of court “overload” and “litigation explosion.” (Compare Galanter, 1979.)

4 What is most interesting about these shortcomings is that they have been identified repeatedly by those within as well as those outside the field. This suggests that the conceptual and methodological problems of the field are difficult. Court dockets may have at first appeared to represent an accessible and easily understood measure of the relationship between law and social change. Yet we are a long way beyond thinking that docket data are to be easily understood, for docket data represent conflict and conflict resolution twice reflected, once by the social construction of disputing by parties, and once again by the construction of a “case” by the court system itself. Thus, in addition to the usual difficulties of archival research, docket data present difficult problems of inference about the processes of central interest. At the same time it should be remembered that this is not the only field of empirical study that presents such challenging problems for data analysis. Nor in my view are these even the chief problems of the field, as I explain below.

5 In an extended comment on research about law and society Sarat and Silbey (1988) have argued that research representative of the mainstream of the field has been influenced by the assumptions which underlie legal ideology. This, they contend, is evidenced by the focus of research on one of two projects: attempting to verify those assumptions or attempting to undermine them. In either event, the topics and issues for this research are dictated by the assumptions of legal ideology, and thus reflect “the pull of the policy audience” to the exclusion of perspectives which favor assumptions that do not accord with the official view of the legal system.

6 Expressions of criticism and doubt about the field of study have often begun by examining the units of analysis that docket studies have often taken for granted: “case,” “court,” and “dispute.” Significantly, it is to this question that investigators, as critics of the field, have directed much of their own introspection. Yet, addressing the criticism of the concepts employed in research by adopting a more theoretically defined unit of analysis presents another dilemma, namely, focused theory; indeed the use of any theory at all highlights sharp differences in perspective. There are no “natural” units of analysis; there are no questions to address that do not raise problems of perspective that deeply divide the research community (Abel, 1980). The presence of these differences in starting points creates an opportunity for comparison of contrasting approaches to specific questions (Nelson 1988b), but they may also divide trial court research along disciplinary or political lines.